News & analysis of the United States Court of Appeals for the Third Circuit, by Matthew Stiegler

Orin Kerr just posted an interesting piece on the Volokh Conspiracy blog discussing a pending Third Circuit appeal.

His post is entitled, “The Fifth Amendment limits on forced decryption and applying the ‘foregone conclusion’ doctrine,” and his subject is United States v. Apple Macpro, No. 15-3537, a pending appeal from an EDPA civil contempt order for failing to provide passwords to decrypt a hard drive believed to contain child pornography. (A New York Times story on the underlying case is here.)

After discussing the parties’ briefs, which he links in his post, Professor Kerr suggests “a pretty simple Fifth Amendment rule:”

On one hand, the government can’t make you enter in the password if that is how they make the case that you know it. On the other hand, if the government already knows that you know the password, you can be required to enter it in without a Fifth Amendment bar.